[No. 34714-8-II. Division Two. May 30, 2007.]
[1] Statutes — Applicability — Question of Law or Fact — Standard of Review. The applicability of a statute to a particular set of facts is a question of law that is reviewed de novo. [2] Costs — Attorney Fees — Statutory Provisions — Review — Standard of Review. When the meaning of an attorney fee statute is at issue, a trial court's decision to award or not award attorney fees to a requesting party is reviewed de novo as a question of law. [3] Costs — Attorney Fees — Statutory Provisions — Application — Question of Law or Fact — Review. Whether a statute authorizes an award of attorney fees is a question of law that is reviewed de novo. [4] Costs — Attorney Fees — Review — Standard of Review. Where a trial court has the discretion to award attorney fees or costs, its decision to grant or deny an award is reviewed for an abuse of discretion. Review for an abuse of discretion looks at whether the trial court's decision is based on tenable grounds or reasons. [5] Contracts — Costs — Attorney Fees — Contractual Right — Statutory Provisions — Elements. RCW 4.84.330 authorizes an award of attorney fees in an action if (1) the action is on a contract or a lease, (2) the contract or lease contains a unilateral attorney fee or cost provision, and (3) there is a prevailing party. The mere allegation of an enforceable contract containing a unilateral attorney fee provision satisfies the first two requirements of the statute. [6] Contracts — Costs — Attorney Fees — Contractual Right — Prevailing Party — Defendant — In General. For purposes of RCW 4.84.330, which entitles a prevailing party in an action on a contract containing an attorney fee provision to an award of reasonable attorney fees, a defendant prevails generally by successfully defending a contract action. [7] Statutes — Construction — Legislative Intent — In General. A court's primary goal in interpreting a statute is to ascertain and give effect to the legislature's intent and purpose. The court must consider the statute as a whole and give effect to all of its language. The court may review related statutes as a means of identifying legislative intent. The court will resort to statutory construction only if the statute can reasonably be interpreted in more than one way. [8] Statutes — Construction — Meaning of Words — Absence of Statutory Definition — Resort to Dictionary — Unambiguous Term. The meaning of an unambiguous statutory term that the statute does not define may determined by resort to a dictionary. [9] Dismissal and Nonsuit — Voluntary Dismissal — Effect. The effect of a voluntary dismissal is to render the proceedings a nullity and to leave the parties as if the action had never been brought. [10] Contracts — Costs — Attorney Fees — Contractual Right — Statutory Provisions — Remedial Purpose. RCW 4.84.330, which entitles a prevailing party in an action on a contract containing an attorney fee provision to an award of reasonable attorney fees, has the remedial purpose of making unilateral attorney fee provisions enforceable bilaterally. [11] Contracts — Costs — Attorney Fees — Contractual Right — Prevailing Party — Judgment — What Constitutes. For purposes of RCW 4.84.330, which entitles a prevailing party in an action on a contract containing an attorney fee provision to an award of reasonable attorney fees and which defines "prevailing party" as the party in whose favor final judgment is rendered, "final judgment" means a court order having preclusive effect. [12] Contracts — Costs — Attorney Fees — Contractual Right — Prevailing Party — Judgment — Voluntary Dismissal Without Prejudice. A voluntary dismissal without prejudice does not constitute a "final judgment" within the meaning of RCW 4.84.330, which entitles a prevailing party in an action on a contract containing an attorney fee provision to an award of reasonable attorney fees and which defines "prevailing party" as the party in whose favor final judgment is rendered. Where a plaintiff in an action on a contract containing an attorney fee provision takes a voluntary dismissal of the action without prejudice, the defendant is not entitled to an award of attorney fees in the action under RCW 4.84.330. [13] Appeal — Disposition of Cause — Affirmance on Other Grounds — In General. An appellate court may affirm a judgment on any grounds supported by the record. [14] Costs — Dismissal and Nonsuit — Voluntary Dismissal — Attorney Fees and Costs — Statutory Costs — Denial — Basis — Exposure to Costs Upon Refiling of Action. A trial court's citation to CR 41(d) is a tenable basis for denying a defendant's request for costs and attorney fees under RCW 4.84.010, .060, and .080 in an action in which the plaintiff has taken a voluntary dismissal without prejudice. Under CR 41(d), the trial court may tax the plaintiff for the costs of the dismissed action if the action is refiled. Nature of Action: A lender sought to recover a deficiency balance on the sum owed under a promissory note from a guarantor of the note after a foreclosure sale of property securing the loan failed to produce sufficient proceeds to satisfy the debt. Superior Court: After the lender unsuccessfully moved for summary judgment, the Superior Court for Pierce County, No. 05-2-11846-1, Linda CJ Lee, J., on March 20, 2006, granted the lender's motion to dismiss the complaint without prejudice. The trial court declined to award attorney fees and costs to either party. Court of Appeals: Holding that the trial court properly denied attorney fees and costs to the defendant, the court affirms the trial court's order. Douglas N. Kiger- (of Blado Kiger, P.S.), for appellant. Alexander S. Kleinberg- (of Eisenhower & Carlson, P.L.L.C.), for respondent. ¶1 HOUGHTON, C.J. — Deanna Kraft appeals the trial court's refusal to award her attorney fees under RCW 4.84.330 and costs under RCW 4.84.010, .060, and .080. We affirm. Facts ¶2 In June 1997, Kraft's husband (now her former husband) took out a Small Business Administration loan from Wachovia SBA Lending, Inc., d/b/a Wachovia Small Business Capital, in order to purchase a home and an in-home veterinary business. Kraft's husband executed a Small Business Administration promissory note (Note), secured by a deed of trust on Kraft and her husband's North Carolina home. Kraft did not sign the Note. Kraft executed a Small Business Administration guaranty (Guaranty) in connection with the Note. Wachovia claims to hold the Guaranty signed by Kraft and secured by the deed of trust on the North Carolina home. ¶3 By the terms of the Guaranty, the debtor agreed to pay all sums owed to the holder of an underlying Note, which Wachovia also claims to hold. The Note requires the debtor to pay "reasonable attorney's fees and costs" incurred in satisfaction of the debt. ¶4 Under the deed of trust, Wachovia foreclosed on Kraft's former residence in North Carolina. Wachovia then sued Kraft on the Note and Guaranty in Pierce County Superior Court, seeking a deficiency balance of $78,196.77. ¶5 Wachovia unsuccessfully moved for summary judgment. Over Kraft's objection, Wachovia then sought leave to dismiss its complaint without prejudice, which the court granted. See CR 41(a)(1)(B), (a)(4). Kraft asked the trial court to reserve the issue of attorney fees and costs. The trial court apparently refused to reserve the issue of attorney fees because "it may hang out there for eternity if the parties do decide to settle and go away and never inform this Court." Analysis ¶6 Kraft relies on RCW 4.84.330 In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract or lease which is entered into after September 21, 1977. Any provision in any such contract or lease which provides for a waiver of attorney's fees is void. As used in this section "prevailing party" means the party in whose favor final judgment is rendered. ¶7 Wachovia argues RCW 4.84.330 will not support an award of attorney fees because a voluntary dismissal without prejudice is not a "final judgment" within the statute's meaning. Resp't's Br. at 10-12. Wachovia asserts that where the plaintiff takes a voluntary dismissal without prejudice, we must review the denial of attorney fees for manifest abuse discretion. Thus, we first identify the appropriate standard of review. ¶9 Wachovia is correct that we review an award of attorney fees for abuse of discretion, that is, whether it was based on tenable grounds or reasons. Taliesen Corp. v. Razore Land Co., 135 Wn. App. 106, 141, 144 P.3d 1185 (2006). But where the meaning of an attorney fee statute is at issue, we review the decision to award or not award attorney fees de novo as a question of law. Attorney Fees ending a court action or proceeding leaving nothing further to be determined by the court or to be done except the administrative execution of the court's finding but not precluding an appeal—used of a court order, decision, judgment, decree, or sentence; compare INTERLOCUTORY . . . : being a court finding that is conclusive as to jurisdiction and precluding the right to appeal to or continue the case in any other court upon the merits. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 851 (2002). ¶14 "Judgment," in its legal sense, means "a formal decision or determination given in a cause by a court of law or other tribunal." WEBSTER'S, supra, at 1223. Black's Law Dictionary similarly defines "final judgment" as "[a] court's last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney's fees) and enforcement of the judgment." BLACK'S LAW DICTIONARY 859 (8th ed. 2004). ¶15 As we have previously stated in the attorney fee context, "the effect of a voluntary dismissal 'is to render the proceedings a nullity and leave the parties as if the action had never been brought.' " Beckman v. Wilcox, 96 Wn. App. 355, 359, 979 P.2d 890 (1999) (internal quotation marks omitted) (quoting Bonneville Assocs., Ltd. P'ship v. Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999)). In Beckman, we held a condemnee to be the prevailing party under RCW 8.24.030 where the condemnor took a voluntary dismissal without prejudice. 96 Wn. App. at 358, 365-66. But we reasoned that the statute at issue did not predicate attorney fees on the entry of judgment. Beckman, 96 Wn. App. at 361-62. In contrast, the statute does precisely that—expressly requiring a "final judgment" before we may deem either party a "prevailing party." ¶16 We note the purpose behind RCW 4.84.330 is remedial—unilateral attorney fee provisions are to be applied bilaterally. Quality Food Ctrs., 134 Wn. App. at 817. Kraft's argument is eminently compelling—that, given this purpose, a plaintiff should not be permitted to avoid attorney fee reciprocity after having tested his or her claim against summary judgment and causing the defendant to incur costs and attorney fees for naught. But given the definition of "final judgment," we cannot say that the legislature intended a suit dismissed without prejudice to yield a "prevailing party" under RCW 4.84.330. Attorney Fees on Appeal ¶18 Both parties request attorney fees on appeal, relying on RAP 18.1. That rule authorizes the award of attorney fees on appeal where "applicable law grants to a party the right to recover reasonable attorney fees." RAP 18.1(a). Here, the applicable law is RCW 4.84.330, which under our holding does not permit either party to recover attorney fees where the plaintiff takes a CR 41 dismissal without prejudice. Accordingly, neither party is awarded attorney fees on appeal. ¶19 We hold a CR 41 voluntary dismissal without prejudice is not a "final judgment" within the meaning of RCW 4.84.330's "prevailing party" language and affirm the trial court. ARMSTRONG and HUNT, JJ., concur.